Intervenor: vol. 27, no. 3 - 4, July - December 2002

CELA Calls on Government to Strengthen the Federal Environmental Assessment Act

By Hugh Benevides

CELA continues to work towards reform of the Canadian Environmental Assessment Act (Act). The five-year review of the Act, conducted by the Canadian Environmental Assessment Agency in 1999-2000, resulted in modest and narrowly-framed proposals for legislative change. An Act to Amend the Canadian Environmental Assessment Act (Bill C-19 in the last Parliamentary Session; now Bill C-9) was reviewed by the House of Commons Standing Committee on Environment and Sustainable Development in the autumn of 2002.

CELA submitted a comprehensive brief on Bill C-19 to the Committee in January 2002, and presented its recommendations before the Committee on May 7th. CELA continued to give its input to the Committee's "clause-by-clause" consideration of Bill C-9 by proposing amendments through MPs who sit on the Committee, and was able to sit in on several Committee meetings.

The government proposed several regressive changes to the Act in Bill C-9, many of which CELA did not succeed in reversing during the Committee process. For example, federal EA has always allowed for the possibility of "bumping up" the level of assessment to a full review panel when serious potential environmental effects come to light, or when there is serious public concern about a project. (For example, the Red Hill Creek expressway project was bumped up to a review panel - before the federal government's right to conduct any EA was challenged, successfully, in the Federal Court: a problematic decision that the federal government failed to appeal.) The Bill would make a decision to maintain an assessment at the "comprehensive study" level final: there could be no later decision to require a review panel. As very few review panels are appointed currently, the environmental community sees Bill C-9 as almost guaranteeing the disappearance of the review panel approach from the federal system.

Bill C-9 also proposes a new stream of class environmental assessments, called replacement class screenings, that would remove the need to consider the local circumstances and cumulative effects of subsequent individual projects in the class. In effect, this type of class screening would replace the need for any contextual or cumulative effects analysis of later projects. Environmentalists have told the government that the existing class screening tool should be put to better use before this new, more heavy-handed approach is made part of the law. But the government has been determined thus far to push this change through.

On other issues CELA has fought a rearguard action and won. Bill C-9 proposed replacing the current system of a paper-based project registry in respect of every project, with an electronic registry on the Internet. CELA and others insisted that the registry should include both components. The government introduced an amendment that would require both the paper and Internet registries, as a matter of law. This amendment was supported by the Committee.

CELA also pushed for a further amendment that would ensure opportunities for public involvement throughout the EA process, by requiring that the public be given 30 days' advance notice of decisions on the Registry. This is especially important for screening level assessments, which make up over 99 percent of all EAs under the Act, but currently require little or no public participation. The Committee also supported this change, although the government was opposed to it. This is probably the single most important change made to the Bill in Committee. CELA will be vigilant in ensuring that it is not reversed.

CELA's submissions and interventions also played an important role in subjecting federal Crown corporations to the Act. Early in the clause-by-clause process, the Committee supported a CELA amendment that brought Crowns under the Act's definition of "federal authority" - contrary to long-standing federal policy. This change prompted Cabinet intervention and eventually, a compromise position, supported by the Committee on the final day of its hearings, that will require "parent Crown corporations" (as defined in the Financial Administration Act) to comply with the Act three years after Bill C-9 receives Royal Assent. (If a regulation is developed in the interim, imposing special rules on such a Crown, that regulation will apply instead.) In respect of a "subsidiary Crown corporation" that is wholly-owned by a parent, the Act will not apply unless regulations that apply to that particular subsidiary are made.

Little information is available concerning the activities of many Crowns. Particular vigilance may be required where projects are spun off to subsidiary Crowns in order to circumvent the Act.

Part of CELA's Bill C-9 strategy is to fix some of the major problems with the Act that were not addressed by the five-year review.

First, CELA has long proposed that the Agency (or some other government body) should be given greater independence and arm's-length authority over the administration of the Act, to ensure greater consistency and transparency and especially, better environmental results. Instead, the government is sticking with the "self-assessment" approach, whereby the project proponent prepares the EA, and the federal department in charge of the project (which in some cases, can itself be the proponent) makes the decision about approving the project. Because there is wide discretion in making this and other decisions, there is no guarantee that the Act prevents environmentally harmful projects.

Second, the critical determination in the Act about whether and how projects will be allowed to proceed is based on the rubbery threshold of "significant adverse environmental effects that can be justified in the circumstances." In other words, the current Act potentially allows every project to degrade the environment. CELA believes that projects receiving federal support or authorization should be required, at a minimum, to have no adverse environmental impact, or to make a positive overall contribution to environmental quality.

These are just two of the fundamental changes CELA has proposed to the Act.

CELA will continue, along with other members of the Environmental Planning and Assessment Caucus of the Canadian Environmental Network, to press for better EA at all levels of government. The Commons Environment Committee plans to produce a second report that recommends further changes not addressed by Bill C-9. The government will be required to table an official response to this second report in Parliament within five months.

CELA will maintain pressure to ensure that the Environment Committee's amendments to Bill C-9 are not diluted by the government, and that the Committee's second report is sufficiently strong.

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Hugh Benevides is a researcher and writer in environmental law and policy .